The opinion of the court was delivered by: Ronald Guzman, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is defendant Miguel Linzon-Salaz's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court denies defendant's motion.
On May 22, 2002, defendant pleaded guilty to one count of 8 U.S.C. § 1326(b) for having illegally reentered the United States after previously being convicted of an aggravated felony. Defendant was sentenced by this Court to 78 months incarceration on September 27, 2001. Defendant filed this motion pursuant to 28 U.S.C. § 2255 on July 3, 2002, seeking relief on two grounds. Defendant first argues that he received ineffective assistance of counsel because his trial counsel failed to raise these issues before the Court. Defendant also argues that the basis for the offense charged in the indictment was a prior deportation that was constitutionally deficient. [ Page 2]
A court will grant a section 2255 petitioner relief if he can "demonstrate that there are flaws in [his] conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice." Boyer v. United States, 55 F.3d 296, 298 (7th Cir. 1995). However, a habeas petitioner who raises a constitutional claim for the first time in a section 2255 petition must establish that he had good cause for failing to raise the issue on appeal and he suffered actual prejudice as a result of the alleged error. United States v. Frady, 456 U.S. 152, 167-68(1982).
A district court cannot reach the merits of an issue presented in a section 2255 petition unless that issue has been raised in a procedurally appropriate manner. Theodorou v. United States, 887 F.2d 1336, 1338 (7th Cir. 1989). A section 2255 petition "will not be allowed to do service for an appeal." Johnson v. United States, 838 F.2d 201, 202 (7th Cir. 1988). Absent a showing of cause for the procedural default and actual prejudice resulting from petitioner's alleged errors, the failure to raise an issue which could have been raised on direct appeal precludes section 2255 review. Williams v. United States, 805 F.2d 1301, 1306-07 (7th Cir. 1986).
Ineffective assistance of counsel may constitute "cause" for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish ineffective assistance of counsel, a defendant must show that (1) his counsel's conduct fell below an objective standard of reasonableness, and (2) "but for counsel's unprofessional error, the result of the proceeding would have been different." Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990). Counsel is assumed [ Page 3]
effective; thus, the burden is heavy on the petitioner to prove that his counsel was ineffective and his defense prejudiced. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993).
Defendant argues that because the basis for the offense charged in the indictment was based on a prior deportation that was constitutionally deficient, his sentence should be vacated. However, defendant failed to raise this claim on direct appeal, and accordingly, he must now show both that he has good cause for having failed to raise the issue on direct appeal and that he was actually prejudiced as a result of the default.
Defendant contends that the reason why he failed to raise the issue on direct appeal was because his trial counsel was "unaware of the legal basis for the claim." (Pet'r's Mot. Vacate, ¶ 13.) The case on which defendant relies in support of his section 2255 petition, I.N.S. v. St. Cyr, CITE, was decided on June 25, 2001. On September 27, 2001, defendant entered a plea of guilty and was sentenced to 78 months of imprisonment on September 27, 2001. Defendant neither raised this issue before this Court nor raised it on direct appeal.
Defendant's claim of ineffective assistance of counsel is not enough to satisfy cause for his delay in raising this issue. It is not the Court's position to try and determine whether the failure to raise such an issue was a mistake or a matter of strategy. Here, defendant has neither shown that his counsel's conduct fell below an objective standard of reasonableness nor shown that the outcome of his claim would have been different but for counsel's unprofessional errors. Ultimately, defendant has failed to show either element of ineffective assistance of counsel, and thus he is precluded from using ineffective assistance of counsel as cause for his default.
Further, defendant has not addressed how he has been prejudiced. To show prejudice stemming from ineffective assistance of counsel, defendant must prove that there is a reasonable probability that, but for counsel's ...